In re the Department of Public Parks — 32 N.Y. St. Rep. 836

Majority

p. 836

In the Matter of the application of The Department of Public Parks to acquire title to land.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

Eminent Domain — Compensation op sueveyoe — Laws 1884, chap. 522.

Seasonable compensation is all that the court can permit to be paid for services of a surveyor in proceedings to acquire title to lands under Laws- - 1884, chapter 522.

Exceptions taken on behalf of Jane K. Lane, administratrix, to the report of a referee, upon a claim presented for the compensation of James 0. Lane, for services and expenditures ag a, civil engineer and surveyor, etc.

Martin J. Keogh, for adm’rx; Franklin Bartlett, for mayor, etc.

The intestate was employed under the authority of the commissioners of estimate, acting under the authority of chap. 522 of the Laws of 1884, to survey and map the lands selected for public parks, so far as they were situated in the county of Westchester, and otherwise aid .them in their own investigations. And to the performance of those services he devoted about the period of three years and nine months, and then presented an account therefor amounting, at the price of ten cents per lineal foot, which he charged, to the sum of $101,540.90. The commissioners of estimate included this account in their own report, and it was as a part of that report presented to this court-for confirmation. But this part of the report was not confirmed, but the charge made was referred to a referee, to take proof concerning it and report the proofs, with his opinion, to this court.

The objection taken to the reference ordered has not been considered, as it "was more especially raised in the case of Robert L. Waters, who in like manner surveyed and mapped the lands of the parks laid out in the Twenty-third and Twenty-fourth wards of the city. And as it has been there determined to be unfounded, it is unnecessary to consider it again in the decision of this case.

The referee heard the evidence produced in support of and against the bill for the services and expenditures of Mr. Lane, and reported the same, with his opinion, to this court. And in his-judgment the bill presented should be reduced to the aggregate sum of $57,584. This sum is divided into $37,500 for the services of the intestate-and $20,000 for disbursements made for the-services of subordinates, and eighty-four dollars for printing-abstract papers and binding those papers and the maps. _ And the exceptions now urged in favor of the administratrix bring in question this reduction in the bill.

The reduction is greater than that made. in the bill of Mr. Waters, the other surveyor. But that may very well have resulted from the omission in the evidence of the number of different descriptions to be examined, in the rendition of the services, and which was proved in the other case, and from the more nu

p. 837

merous topographical obstacles encountered in making the surveys and maps for the parks within the bounds of the city. The aggregate number of acres surveyed was greater in this than in the other. But it may be inferred from its greater distance from the city, and the absence of proof to the contrary, that it had not undergone so many subdivisions or passed by conveyances to-so many different owners. It is true, without doubt, that the services of the intestate were faithfully and correctly performed. And that on different occasions, as the facts are related principally by Mr. Marsh, one of the commissioners of estimate, his duties were arduous and protracted. But those duties were exceptional and not continuous for any extended period of time. In the main they were the ordinary services of civil engineers and surveyors, exacting the skill and experience only of competent persons in that profession. And the charges made for them were beyond the oiSinary yearly salary of those individuals. Indeed, as the compensation of the intestate has been reduced by the report, it still exceeds that of the state engineer and that of each of the other principal officers of the state government, and of the city government of the city of New York, except the mayor, comptroller and corporation counsel.

Evidence was given to the effect that ten cents per lineal foot of the surveys was not an overcharge. But that obtained from Mr. Waters was reduced in its weight by his own interest in the controversy, for he had made his bill on the same basis. And Mr. Marsh, in his testimony, stated what had been done by way of performance of the services only as they came within the range of his own observations. And the other witnesses, one of whom was the assistant of the intestate, expresses the same judgment as to value as did Mr. Waters. But it is transparently clear that in their calculations they have transcended the bounds of reasonable compensation, which is all that the court can permit to be paid. And this was clearly the judgment of Mr. Towle, who was qualified to speak upon the subject and had the décided probabilities to sustain him in what he said.

Besides this, the allowance for the expenditures made in the employment of persons in the service of the intestate was very liberal under the proof relating to their numbers, salaries and services. And if there was any deficiency in the amount allowed for the services of the intestate, that was corrected and supplied by this additional amount of $20,000. It is quite manifest from what may be acted upon as controlling probabilities, that the statements of the witnesses sustaining the charges as they were made could not justly be accepted as .furnishing the criterion by which the compensation of the intestate should be adjusted.' The evidence given on- behalf of his administratrix was adapted to no other theory. And when that was rejected, as it certainly should be, then there remained nothing whatever which would justify the payment or allowance of any greater amount than that mentioned in the report of the referee. The exceptions should, therefore, be overruled, and that amount only directed to be paid.

Van Brunt, P. J., concurs.